United States v. Javier Perez

712 F. App'x 136
CourtCourt of Appeals for the Third Circuit
DecidedOctober 18, 2017
Docket16-3365
StatusUnpublished
Cited by1 cases

This text of 712 F. App'x 136 (United States v. Javier Perez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Javier Perez, 712 F. App'x 136 (3d Cir. 2017).

Opinion

OPINION *

RESTREPO, Circuit Judge.

Javier Perez appeals from his conviction of possession of child pornography, arguing that the initial motion to suppress evidence recovered in a general search of his computer was denied in error, and that the Government’s presentation of child pornography evidence at trial — although Perez offered to stipulate to every element except identity — unduly prejudiced the jury. For the reasons that follow, we will affirm.

I

Because we write for the benefit of the parties, we set out only the facts necessary for the discussion that follows. In October 2013, an FBI agent discovered a user of a common peer-to-peer file-sharing network sharing a video of child pornography. The FBI subsequently subpoenaed the user’s internet service provider for the account information corresponding to the internet protocol (“IP”) address in question, and discovered that the account belonged to Perez, located at a residence in Philadelphia. Using the child pornography that the agent had discovered being shared by a user at that IP address, the FBI obtained a warrant authorizing a search and seizure of all computer equipment at that physical address.

In executing the warrant, the FBI discovered that five people lived in the residence, including an individual who repaired computers out of the home. Among the five residents and the computer repair business, the home contained 130 computers and digital storage items, all of which the FBI seized. The only items ultimately found to contain child pornography came from the basement in which Perez resided.

To guide the subsequent human-conducted search of the desktop computer recovered from Perez’s basement space, a forensic team duplicated the computer’s hard drive, then ran software that scanned the entire drive and catalogued all of its contents by file type. The 'scan checked for mismatches of file extensions and file contents — e.g., assessing whether an image file had been saved in a .doc format to obscure its true content — and also checked images against databases of known child pornography. Agents used the results of the forensic scan' to guide a human search of web browsing history, email, photos and videos, and files specifically identified as pertaining to missing and exploited children. The human search involved some limits; with respect to emails, for example, agents looked at metadata first and subsequently looked at message content if the metadata prompted additional questions. With respect to pictures and videos, agents looked at thumbnails first and then viewed expanded versions if the thumbnail seemed to involve responsive material. The human search, however, included an inspection of the entire web history, including browsing, search queries, bookmarks, and social media usage.

Having discovered a number of images and videos of child pornography, as well as internet browsing and search history that indicated the user of the computer had sought out such images, the Government charged Perez with numerous offenses. In advance of trial, he indicated that he planned to dispute only the identity of the person who had engaged in the conduct at issue — noting that, because the basement did not even have a door, anyone could have accessed the computer — and offered to stipulate to all non-identity elements of the crimes, including that the media files were sexually explicit and contained minor children. The Government declined the stipulation, and presented child pornography to the jury after the District Court overruled Perez’s objections on the basis of undue prejudice. The jury ultimately convicted Perez of possession, but not distribution.

II 1

The Fourth Amendment prohibits “[gjeneral warrants” that would allow “exploratory rummaging in a person’s belongings.” Andresen v. Maryland, 427 U.S. 463, 479, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). To guard against such general warrants, courts require “particularity,” which “prevents the seizure of one thing under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927). Particularity has three components: “First, a warrant must identify the specific offense for which the police have established probable cause. Second, a warrant must describe the place to be searched. Third, the warrant must specify the items to be seized by their relation to designated crimes.” United States v. Galpin, 720 F.3d 436, 445-46 (2d Cir. 2013) (citations omitted). Ultimately, the particularity requirement intends that “nothing is left to the discretion of the officer executing the warrant.” Marron, 275 U.S. at 196, 48 S.Ct. 74.

Courts — including our own — have struggled -to adapt Fourth Amendment search doctrines designed for physical spaces to digital contexts. Riley v. California, — U.S. -, 134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014). Adapting the particularity requirement to searches of digitally stored information presents one example of that problem. For one thing, the place to be searched encompasses much more information in a search of digital storage than in one of physical space, which appears to allow the plain view exception to undercut the warrant requirement. Putting all information on a digital storage device that can hold data “roughly equal to 16 billion thick books,” United States v. Ganias, 824 F.3d 199, 218 (2d Cir. 2016), in plain view whenever law enforcement officers have a valid warrant to search for something that may exist in the storage substantially expands the aggregate quantity of material encompassed by the exception. Conversely, because of individuals’ ability to “hide, mislabel, or manipulate files,” United States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011), “there may be no practical substitute for actually looking in many (perhaps all)” files and locations during a search of digital storage. Id. at 239.

.To the extent that some courts have tried to address this tension, results have been mixed. In 2009, the Ninth Circuit issued an en banc opinion with five princi- . pies to guide Magistrate Judges in issuing or approving warrants for digital storage spaces. United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc) (“CDT II”). Notably, the Ninth Circuit reissued the opinion about a year later as a per curiam opinion, which differed little except that it moved the guidance protocols to a (non-binding) concurrence, United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam) (“CDT III”); id. at 1179-80 (Kozinski, C.J., concurring).

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Bluebook (online)
712 F. App'x 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-javier-perez-ca3-2017.